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CHA P. XII.

OF THE DISPENSING POWER IN THE CROWN.

INCE the passing of the first of WilN liam and Mary I will not suppose, that any one individual in the nation can look upon the dispensing power to be a legal or constitutional prerogative in the crown, or that it can on any occasion be exercised by the king independently of parliament. But as this was one of the great grievances complained of at the revolution, and was generally looked upon by the nation as an usurpation of the crown, and a direct incroachment upon the liberties of the people, I shall beg leave to make some observations upon it. It appears to me as clear, that the difpensing power, as it was exercised down to the time of the revolution, was a part of the ancient royal prerogative, as it is unquestionable, that it was in its nature a power capable of the groffest abuse, and consequently highly improper and even dangerous to be trusted in the hands of the sovereign. As it is now more than a century, since by this explicit and judicious act of parliament

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the dispensing power has been declared unconftitutional, an opinion upon the old legal question may be now hazarded without a fhadow of displeasure or offence. I shall do it by way of illustration of the principle, that the fovereignty of power continues for ever unalienably to reside with the people ; and to this principle I attribute the glory and prefervation of the English constitution.

Of this question I say what lords Ellefmere and Bacon said formerly of another, that it is not a question de bono, but de vero: I think it as true, that the right did exist, as I think it improper that it should have exifted. The account of the authorities in law, upon which judgment was given in Sir Edward Hale's case, written by Sir Edward Herbert, chief justice of the common pleas in vindication of himself I cannot help commending as one of the most upright, solid, and convincing arguments I ever remeinber to have read, as far as it goes to prove the existence of the right from its ancient and continued usage and practice. But like all other tories, he deduced this prerogative of the crown, like the whole regal' dignity and power itself, from the wrong fource. He clearly shews the usage and exertion of this prerogative to have been noticed and ac

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knowledged by parliament and the courts of

law for some centuries. It could only then It appears from the usage of the have existed by the sufferance, acquiescence, Nante, that the or recognition of the community ; and that,

: it did so, the very usage of the term of non obstante is a convincing proof.

I do not mean to enter into nor repeat any of Sir Edward Herbert's arguments. The difference, which is admitted by all parties, between the right of dispensing from statutes, which enjoin mala in se and mala probibita, is to my mind sufficiently convincing, that the people of this nation, did heretofore acknowledge or admit of a right in their fovereign to dispense in certain cases

with the obligations of acts of parliament. The difference For as to mala in se, it was no more in the between disa pensing with power of the parliament, than of the king, to mala prohibita and mala in fi, permit or allow of any dispensation or sufabsurd.

pension from them, as is evident; that is, no
human power whatever could render malum
in fe, licit or lawful, much less legal or con-
stitutional; and as to the malum prohibitum,
we are speaking of what is prohibited by the
legislative authority ; now it is evident, that
the executive power, as a part of the le-
gislature, can of itself have no absolute power,
nor controul, nor jurisdiction over the whole
legislature, for then the part would be greater,

than

matter of the

the power of

from it.

than the whole ; but if it could of itself fufpend or dispense with the obligation or coercive effect of the acts of the whole legisature, it would have such power, controul, or jurisdiction over it. The subject matter of the subject the legislative act is perfectly irrelevant to act irrelevant to the power of fufpending it ; the power, which difpenting forbids the killing of a partridge before the first day of September, is the same, and as binding and as uncontroulable and indifpensable, as that, which condemns the traitor to be hanged, drawn, and quartered: nothing but the consent of the community could vest a right in the king to dispense with either of them; and from every sort of authority, that can be produced, it appears evident beyond question, that this right was formerly permitted and acknowledged in the crown. The possible abuse of this prerogative by The impru.

dent exercise of the sovereign, is no more an argument against a prerogative,

no proof against the subsistence of the prerogative itself, than the subsistence against other undoubted rights and prerogatives still vested in the crown. If the king were to pardon every criminal, that is condemned, or create an arıny of peers, such anarchy and confusion would follow the imprudent exertion of his prerogative, that the preservation of the state would require an immediate check, or an alteration in this

part

of it.

part of the constitution ; but the possibility of abusing a prerogative does not certainly do away the sovereign's right to it. In all fuch kinds of prerogative, the discretionary and prudential power of exertion is not the least part of the prerogative itself.

Upon the whole, since this very great and enormous power or prerogative is now for the benefit and happiness of the nation rendered illegal and unconstitutional, I shall expect, since all party motives and reasons are now at an end, that some few observations will be candidly attended to by an unbiassed, because now a disinterested public; and I frankly profess, that I shall presume upon most of my readers thinking with me, that their ancestors, in 1688, were as commendable for insisting upon the annihilation of the right, as their progenitors had been blameable for having acquiesced in or submitted unto it so

long.

Acquiescence It appears, that the free acquiescence of the of the community to the pre- community in the actual exercise of this prerogative gives vä right to the rogative in the crown, is a convincing proof crown.

of the right of the sovereign to the prerogative itself; (for almost the whole prerogative of the crown originated from, and became established by the tacit consent of the people).

In

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